No one can take advantage of the forfeiture provided for
nonperformance of a condition subsequent in a land grant
in
praesenti except the government,
Schulenberg
v. Harriman, 21 Wall. 44, nor can there be any
forfeiture on the part of the United States without appropriate
judicial proceeding equivalent to office found or legislative
assertion of ownership.
Although the grant of a right of way involved in this action
made by the Act of June 4, 1898, c. 377, 30 Stat. 430, provided for
grading and completion of a specified number of miles of track,
failure to do so did not operate as a forfeiture without action by
the government or render the grant null or void leaving the land
open for settlement or location by another railroad.
Whether a granted right of way to a railroad under act of
Congress has been abandoned by the grantee or whether the grantee
is estopped to make claim thereunder are not federal questions, and
the decision of the state court is not reviewable here.
49 Wash. 280 affirmed.
The facts, which involve the right of a grantee of lands under
the Act of June 4, 1898, 30 Stat. 430, are stated in the
opinion.
Page 219 U. S. 169
MR. JUSTICE DAY delivered the opinion of the Court.
In this case, the Spokane & British Columbia Railway
Company, plaintiff in error, began an action in the Superior Court
of the State of Washington for Ferry County, to enjoin the
Washington & Great Northern Railway Company, the Washington
Improvement & Development Company, and others from interfering
with the use of a certain right of way for railway purposes through
the Colville Indian Reservation in the State of Washington which,
it was alleged, belonged to the plaintiff. The plaintiff had
judgment in its favor in the superior court. Upon proceedings in
error, the judgment was reversed and a judgment entered in favor of
the present defendants in error, defendants below. 49 Wash. 280. To
that judgment a writ of error was sued out from this Court.
The case presents a conflict between the right of way of the
Spokane & British Columbia Railway Company
Page 219 U. S. 170
and a right of way theretofore granted by the United States to
the Washington Improvement & Development Company, grantor of
the Washington & Great Northern Railway Company. The case is
stated in the Supreme Court of Washington as follows:
"By an act of Congress approved June 4, 1898, there was granted
to the appellant Washington Improvement & Development Company,
and to its assigns, a right of way for its railway, telegraph, and
telephone lines through the Colville Indian Reservation, beginning
on the Columbia River near the mouth of the Sans Poil River,
running thence northerly through said reservation toward the
international line. There was also granted grounds adjacent for the
purposes of stations, other buildings, side tracks, and switch
tracks. The act provided for the filing of maps showing the route
when determined upon, said maps of definite location to be approved
by the Secretary of the Interior. These maps were subsequently
filed, and were approved by the Honorable Secretary prior to
November 27, 1899. Before the commencement of this action, the
Washington Improvement & Development Company transferred all of
its rights, privileges, and immunities acquired under this act of
Congress to the appellant Washington & Great Northern Railway
Company. Since the filing and approval of the maps of definite
location, as aforesaid, this respondent [plaintiff in error here],
acting under authority of the Act of Congress of March 3, 1875, and
the Act of Congress of March 2, 1899, located a route for its
railway over practically the same line indicated by the maps filed
by the Washington Improvement & Development Company, as
aforesaid, and filed its maps with the Secretary of the Interior,
who approved the same on October 17, 1905. The Act of June 4, 1898,
under which appellants [defendants in error here] claim, contained
the following provision: "
Page 219 U. S. 171
" Provided, That when a map showing any portion of said railway
company's located line is filed herein, as provided for, said
company shall commence grading said located line within six months
thereafter or such shall be approved by the secretary of the shall
be approved by the secretary of the Interior in sections of
twenty-five miles before the construction of any such section shall
be begun."
"Section 5 of the statute reads as follows:"
" That the right herein granted shall be forfeited by said
company unless at least twenty-five miles of said railroad shall be
constructed through the said reservation within two years after the
passage of this act."
"Neither the Washington Improvement & Development Company
nor its successor, the Washington & Great Northern Railway
Company, commenced grading within six months after the approval of
its maps of definite location, nor did it construct twenty-five
miles of railroad, nor any, within two years after the passage of
the act. For these reasons, the respondent claims that appellant's
location of the strip indicated by its map became void and
forfeited, and that respondent had a right to go upon the same
strip of land, and survey and locate its line of railway; that,
having surveyed and marked out its proposed line of railway upon
substantially this same strip of ground after the expiration of two
years, and its said maps of location having been approved by the
Secretary of the Interior, respondent claims that its location
thereupon is legal, and that appellants have no rights whatever in
the premises, and should be enjoined from in any manner interfering
(which appellants were doing) with the respondent's use and
occupancy thereof."
From this statement, it is apparent that the case turns upon the
rights of the defendants in error, the Washington & Great
Northern Railway Company, in the right of way, as the successor of
the Washington Improvement & Development Company, in view of
the facts just stated.
Page 219 U. S. 172
The grant to the Washington Improvement & Development
Company, to it and its assigns, by the Act of Congress of June 4,
1898 (30 Stat. 430, c. 377), was of the right of way for its
railway, telegraph, and telephone lines in and through the Colville
Indian Reservation in the State of Washington, and its language
is:
"That there is hereby granted to the Washington Improvement
& Development Company, a corporation organized and existing
under the laws of the State of Washington, and to its assigns, a
right of way for its railway, telegraph, and telephone lines
through the Colville Indian Reservation in the State of
Washington."
A description of the right of way is inserted, and in § 3 of the
act it is provided that maps of the route of its located lines
through the reservation shall be filed in the office of the
Secretary of the Interior, and, after the filing of the maps, no
claim for a subsequent settlement and improvement upon the right of
way shown by said maps shall be valid as against said company; the
act then cites the proviso already quoted from the opinion of the
Supreme Court of Washington, requiring the company to commence
grading the located lines within six months "or such location shall
be void."
Section 4 authorized the company to enter upon the reservation
for the purpose of surveying and locating the line.
Section 5 provided that the right therein granted should be
forfeited by said company unless at least twenty-five miles of said
railroad shall be constructed through the said reservation within
two years after the passage of the act.
As found by the Supreme Court of Washington, the grading was not
begun within the six months provided, nor were twenty-five miles of
said railroad constructed through the reservation within two years
after the passage of the act, as provided in § 5.
Page 219 U. S. 173
Subsequently, the maps of location of the plaintiff in error
were approved by the Secretary of the Interior, and the contention
is on its behalf that the rights of the defendant in error, as
successor of the original grantee, had terminated because of the
failure to keep the conditions of the granting act. On the part of
the defendant in error, it is contended that, inasmuch as the grant
was
in praesenti, and there has been no subsequent act of
Congress or direct proceeding in behalf of the United States to
forfeit the title of the grantee, its rights are unimpaired and
superior in the conflicting right of way to those of the plaintiff
in error.
The Supreme Court of Washington, reviewing the decisions in this
Court, was of opinion that the rights granted in the Act of June 4,
1898, had not been forfeited, and inured to the benefit of the
Washington & Great Northern Railway Company as successor of the
Washington Improvement & Development Company.
This Court has had frequent occasion to consider acts of this
character, and a brief review of its decisions will, we think
establish the rule to be applied. The leading case is
Schulenberg v.
Harriman, 21 Wall. 44. In that case, there was an
act of Congress making a grant of lands, conditioned that all lands
remaining unsold after ten years should revert to the United
States. It was there held that, notwithstanding this condition, no
one could take advantage of its nonperformance except the grantor
or his heirs, or the successors of the grantor, if the grant
proceeded from an artificial person, and that, unless such persons
asserted the right to forfeiture, the title remained unimpaired in
the grantee, and it was further held that, if the grant be a public
one, the right to forfeiture must be asserted by judicial
proceedings authorized by law, the equivalent of an inquest of
office at common law, or there must be some legislative assertion
of ownership for the breach of the condition. This doctrine was
approved
Page 219 U. S. 174
in
Grinnell v. Railroad Co., 103 U.
S. 739;
Van Wyck v. Knevals, 106 U.
S. 360, and
St. Louis &c. Ry. Co. v. McGee,
115 U. S. 469.
In
New York Indians v. United States, 170 U. S.
1, this Court, after referring to
Schulenberg
v. Harriman, 21 Wall. 44, said:
"It has always been held that these were grants
in
praesenti, although the lands could not be identified until
the map of definite location of the road was filed, when the title
which was previously imperfect acquired precision and became
attached to the land. The doctrine of this case has been affirmed
so many times that the question is no longer open to argument
here."
In
Bybee v. Oregon &c. Railroad Co., 139 U.
S. 663, the grant provided that not only the lands
should revert to the United States for failure to perform the
conditions, but the grant itself should be null and void for
noncompliance with the conditions. It was nevertheless held that
the conditions were subsequent, and the title could not be
forfeited except upon proper proceedings by the government,
judicial in their character, or an act of Congress, competent for
that purpose.
Applying the principles of those cases to the grant in question,
we find that in its terms the granting clause is clear and
distinct, and conveys an estate
in praesenti. There is
nothing in the conditions inconsistent with the vesting of the
title, or requiring things to be done before the title can be
vested. The company is required to commence grading its located
line within six months, and the grant is to be forfeited unless at
least twenty-five miles shall be constructed within two years after
the passage of the act. These things may be done after the vesting
of the title, and do not necessarily precede the vesting of the
estate.
Reading this grant in the light of the former adjudications of
this Court, we think it must be held that it was
Page 219 U. S. 175
the intention of Congress that the grantee should perform these
conditions after acquiring title and taking possession, and
therefore that the conditions were subsequent. This being true,
there could be no forfeiture on the part of the United States
without some appropriate judicial or legislative action, which it
is not claimed was taken in this case. We think the Supreme Court
of the State of Washington was right in its construction of the
grant under the circumstances shown.
The contention that the grant was abandoned by the grantee, or
that the circumstances show estoppel to make claim under it, do not
present questions reviewable here. The state court having, in our
view, properly decided the federal question made, upon which this
Court alone could take jurisdiction, its judgment must be
Affirmed.